Taylor v Gale [2009] ACTSC 90 (10 August 2009)

Last Updated: 1 September 2009

IAN TAYLOR v MATTHEW GALE
[2009] ACTSC 90 (10 August 2009)

APPEAL – appeal from Magistrates Court – appeal against conviction – appeal upheld
UNLAWFUL POSSESSION – possession of an unregistered firearm – possession of a firearm without licence or permit – ‘constructive possession’ – control over firearm – whether the request to obtain the firearm went beyond a merely preparatory act – attempt – attempted possession – alternative verdict of attempt – proximity to intended possession – how the criminal code affects offences created under the firearms act – whether there was an error in raising the ‘attempt’ offence – requirement of mens rea

SENTENCE – incorrect penalty for the offence communicated to the Magistrate – whether the penalty imposed was affected by error

The Firearms Act 1996 (ACT) ss4CA, 16, 53, 62, 84A, 93, 98, 99, 104, 124,
Crimes Act 1900 (ACT) s6, 298,
Criminal Code 2002 (ACT) s8, 44
Legislation Act 2001 (ACT) s6, 127

William v Douglas [1949] HCA 40; (1949) 78 CLR 521
Xue Zhong Situ v R [2008] NSWCCA 161 (14 July 2008)
Beckwith v R [1976] HCA 55; (1976) 135 CLR 569
R v Grant (1975) 2 NZLR 165
R v Prior [1992] NTSC 108; (1992) 112 FLR 388
Gillis v R [1994] SCWACCA (12 July 1994)
R v Karoly Palaga [2001] SASC 174
Tasmania v David Wei Meng Lee [2006] TASSC 92

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 115 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 10 August 2009

IN THE SUPREME COURT OF THE )
) No. SCA 115 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: IAN TAYLOR

Appellant

AND: MATTHEW GALE

Respondent

ORDER

Judge: Higgins CJ
Date: 10 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeals be upheld and the convictions and penalties set aside.
2. The parties be heard as to the further disposition of the matters and any other orders.

1. This is an appeal from findings and orders made by Magistrate Lalor on 28 November 2008. The appellant had pleaded not guilty to charges:

That he, ..., on 24 March 2008, did without reasonable excuse possess to wit a FN-Browning, 1906 model, self loading pistol chambered for the ACP .25 calibre cartridge, serial number 995594 being an unregistered firearm.
That he, ..., on 24 March 2008, a person who possessed a firearm, to wit, a FN-Browning, did not take all reasonable precautions to ensure its’ safekeeping.
That he, ..., on 24 March 2008, not being a person approved, licensed or authorised by the registrar, did possess ammunition, to wit five .25 ACP calibre cartridges.
That he, ..., on 24 March 2008, did possess a firearm, to wit [FN-Browning (supra)] whilst not authorised by a licence or permit of [sic] the Firearms Act 1996.

2. Those allegations engaged respectively ss 53(1), 62(1)(a), 99(1) and 16(1) of the Firearms Act 1996 (ACT) (F Act). Those provisions are, in numerical order:

16 Unauthorised possession or use of firearms prohibited
(1) A person commits an offence if—
(a) the person possesses or uses a firearm; and
(b) the person is not authorised by a licence or permit, or this Act, to possess or use the firearm.
Maximum penalty:
(a) for the possession or use of a prohibited firearm or prohibited pistol—200 penalty units, imprisonment for 2 years or both; and
...
53 Unregistered firearms
(1) A person shall not, without reasonable excuse, sell, purchase, possess or use a firearm that is not registered.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
...

62 General requirements
(1) A person who possesses a firearm shall take all reasonable precautions to ensure—
(a) its safe keeping; and
...
99 Possession of ammunition
(1) A person shall not possess ammunition.
Maximum penalty: 10 penalty units.

3. His Honour found an offence of attempting to possess a firearm whilst unlicensed and which was unregistered, recorded a conviction and, on the first, imposed a fine of $2,000 (plus costs $59.00 and CIC levy $50) payable by instalments and, on the second a fine of $1,000 (plus costs $59.00 and CIC levy $50.00) payable by instalments. The four charges originally proffered were dismissed.
4. The estranged wife of the appellant, Ms Taylor, gave evidence that, Sean Hedditch, her son and the step-son of the appellant, had told her that the appellant had asked him to “get a gun from the garage and take it to him”. That was on 24 March 2008.
5. She asked Mr Hedditch where it was. He said he was told that it was in “the tool box”. They could not find it so the appellant was telephoned. He was put on loudspeaker. He said it was in the “snap on tool box”. The weapon was then located. Ms Taylor refused to let Mr Hedditch take possession of it believing that it might lead to him being charged with possession of it.
6. As a result, Ms Taylor declined to permit the gun to be collected by the appellant. It was collected and delivered to police by a neighbour. Ms Taylor identified a photograph of it and of some ammunition in situ near to it.
7. Mr Hedditch gave evidence of the call he received from the appellant on 24 March 2008. The appellant asked him to get a gun that was in the shed. After further phone calls he located it as Ms Taylor had deposed. He agreed that he was told by her not to touch or remove it or take it to the appellant. He complied with her instructions.
8. Mr Hedditch conceded that he had previously used the tool box though he had not seen the firearm. The appellant had been excluded from the premises since he and Ms Taylor separated.
9. Detective Senior Constable Gale, the respondent, had responded to the information concerning the firearm. He had verified certain call records relevant to the incident.
10. Also tendered was a certificate under s 124 of the F Act that, as his counsel conceded, established that the appellant held no relevant permit or license. There was also tendered a report identifying the FN-Browning pistol and ammunition. The appellant offered no evidence.
11. Written submissions were received from the parties.
12. The respondent submitted that possession by the appellant was established on the facts as proved by reference to “constructive” possession. That is, the appellant had placed the pistol in a concealed position where it was unlikely to be found otherwise than by him though he did not have, at the time referred to in the charges, lawful access to the place where it was secreted.
13. The respondent defined possession as including “an ability to claim or obtain control of the weapon”. That, the respondent contended, covered the situation revealed by the evidence in this case. That is, the appellant, having hidden the pistol and ammunition in the tool box, albeit in a place not exclusively accessible by him, was still in possession thereof. Reliance was placed upon Williams v Douglas [1949] HCA 40; (1949) 78 CLR 521 to support that proposition.
14. The submissions for the defence were, first, that the evidence of the telephone calls was not sufficient to prove, beyond reasonable doubt, that the appellant had knowledge of and directed Mr Hedditch to the pistol and ammunition.
15. At its highest, the appellant’s counsel contended, there had been an attempt to gain possession of the firearm, thought the ammunition had not been referred to by him.
16. His Honour found that the appellant was aware of the whereabouts of the firearm and had asked Mr Hedditch to obtain it for him.
17. Clearly, that conclusion was open to his Honour.
18. His Honour noted that the appellant and Ms Taylor had separated on 22 February 2008. He had been, since then, excluded from the premises where the pistol was located. The locks had been changed. The appellant had had no lawful access to the property as from that date.
19. Correctly, in my opinion, his Honour held that the prosecution had not established that the appellant had any lawful access to the firearm and ammunition as at the date charged. He could only get access to the items by obtaining Mr Hedditch’s assistance or that of Ms Taylor. In Williams v Douglas (supra), though the defendant had hidden the contraband in a hotel bathroom, shared with others, he continued to have lawful access thereto. The others did not know of the contraband.
20. Accordingly, his Honour dismissed the charge of failing to ensure the safekeeping of the items as the appellant had no control over the pistol as at the date of the charge but requested submissions as to the application of s 298 of the Crimes Act 1900 (ACT) (Crimes Act) in respect of the three remaining charges.
21. That section provides:

If on the trial of a person for any offence the jury are not satisfied that he or she is guilty, but are satisfied that he or she is guilty of an attempt to commit, or of an assault with intent to commit, the same, they may acquit him or her of the offence charged, and find him or her guilty of the attempt, or assault, and he or she shall be liable to punishment accordingly.

22. Section 6 provides that in the case of an offence dealt with summarily a reference to “the jury” is a reference to the presiding magistrate.
23. To attempt to commit an offence is itself an offence pursuant to s 44 of the Criminal Code 2002 (the Code).
24. After argument on that issue, his Honour found that the appellant had attempted to obtain possession of the unlicensed firearm but he could not be satisfied that the attempted possession extended to the ammunition. Accordingly, he convicted the appellant of the offences CC2008/6408 and CC2008/6405 and dismissed the charges otherwise.
25. Before me the parties were content to rely on their written submissions.
26. The appellant contended that his Honour erred in his assessment of the effect of the evidence.
27. The unchallenged evidence of Mr Hedditch was that the appellant asked him to locate the “weapon” and get it for him. His reply to his father was, “Yes, no worries, I’ll have a look for it and call you back”. (AB 43)
28. Mr Hedditch could not find the gun so he rang back. He was told to ask his mother (Ms Taylor) where it was. He did so but she knew nothing of it. He then searched the tool box more thoroughly, found the gun and was told by his mother not to touch it. He phoned the appellant and told him that his mother said that the appellant should get it himself or send someone else. (AB 44)
29. The appellant took no further steps to obtain the firearm.
30. It was submitted that this conduct was no more than conduct merely preparatory to the commission of the offences in question.
31. Section 44 of the Code provides:

Attempt
(1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
(3) The question whether conduct is more than merely preparatory is a question of fact.
(4) A person may be found guilty of attempting to commit an offence even though—
(a) it was impossible to commit the offence attempted; or
(b) the person committed the offence attempted.
(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.
Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).
(6) However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.
(7) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.
(8) If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence.
(9) The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.
(10) This section does not apply to an offence against section 45 or section 48 (Conspiracy).

32. The essence of the offence, Mr Archer submits, is the actual possession without a then current licence or permit of a weapon that is not then registered. It was not apparent, Mr Archer submitted, that the appellant intended to take possession of the weapon without those conditions being satisfied.
33. Further Mr Archer submits, the F Act does not create an offence capable of being merely attempted. Only when possession is taken can the conditions for the commission of the offence be then established. That is consistent with s 44(7) (supra).
34. Ms Snell, for the respondent, submitted, correctly in my view, that his Honour had been entitled to find that the appellant had asked Mr Hedditch to obtain the firearm and to then bring it to him, knowing that the firearm was then unregistered and that he had no licence for it.
35. That, Ms Snell contends satisfied the proximity test for an attempt, even though Mr Hedditch did not agree to comply with the appellant’s request to bring the weapon to him.
36. The example given by Mr Archer of a person agreeing to buy a firearm but intending to be licensed and have the gun registered before possession is obtained not being a criminal attempt is distinguishable because intent is not to possess whilst unlicensed an unregistered weapon. The appellant, it could be inferred, knew the firearm was unregistered. He had no licence, and could be found to have been requesting that the pistol be brought to him in those circumstances.
37. That, Ms Snell contended, was more than mere preparatory conduct.

Was there error in raising the attempt offence?

38. It seems to me that his Honour was correct to hold that if it appeared that a defendant should be acquitted of a substantive offence then it would be open to a magistrate on a summary trial to consider whether a finding should be made that the defendant was guilty of an attempt to commit that offence. The combination of s 44 of the Code and ss 6 and 298 of the Crimes Act relied upon by his Honour support the conclusion to which he came.
39. It was, of course, appropriate that such an issue be determined only after due notice to the parties and a fair opportunity given to them to address the issue. That was done. Mr Kukulies-Smith did not ask for an adjournment further to research the issue. The factual issues were no different. The only question his Honour identified was whether the request to obtain the firearm went beyond a merely preparatory act.
40. No issue was raised before his Honour as to whether the offence in question was capable or not of being attempted.

Can there be an attempt to possess an unregistered firearm or possess a firearm whilst unlicensed?

41. Ms Snell contended that the case of Xue Zhong Situ v R [2008] NSWCCA 161 (14 July 2008) is analogous to the present case and supports the view that it is an offence known to law.
42. The appellant in that case was convicted of attempting to possess a prohibited import, namely a trafficable quantity of methylamphetamine.
43. A package from Guangzhou, China, was intercepted by Customs due to a faulty customs declaration. The addressee was not then in Australia. The appellant received a notice to collect the package. He procured a friend to inquire as to the procedure for doing so. The appellant contacted a Customs Officer as he was advised by his friend to do. The appellant asked for the package to be forwarded to him.
44. Other evidence suggested that he knew the package contained the illicit drugs. Thus it could reasonably have been inferred that he made the request intending to possess the illicit drugs. It was not disputed that those facts would suffice to prove an attempt as charged.
45. However, not all offences can be the subject of s 44 of the Code. Indeed, CC 2008/6406, fail to ensure the safekeeping of a firearm, is, self-evidently, such an offence.
46. It is clearly appropriate in the case of drug offences in particular that the offence of attempting to possess illicit drugs, should be punishable on proof of an appropriately proximate overt act with requisite intent, such as is illustrated by Situ v R (supra).
47. However, there is also the case of Beckwith v R [1976] HCA 55; (1976) 135 CLR 569. The offence there charged was of attempting to possess a prohibited import contrary to s 233B of the Customs Act 1901 (Cth) (Customs Act). Section 237 of that Act provided that:

Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed.

48. The question addressed by the High Court was whether that provision was inconsistent with the offence created by s 233B so as to indicate an intention to except 233B from the operation of s 237. There were express references in s 233B to attempts to import or export narcotic goods. Further, certain defences, provided for in relation to offences created by s 233B, were not expressed to apply to s 237 offences.
49. Additionally, it was submitted that to possess an article is not an act that can be attempted. It is a passive consequence of a prior act that being the acquisition of possession (see R v Grant (1975) 2 NZLR 165 per Mahon J).
50. As Gibb J noted, however, (at 576):

If a legislature provided in terms that it should be an offence to attempt to have possession of a narcotic there would in my opinion be no difficulty in giving effect to the intention so expressed. An act which would constitute an attempt to get possession of a narcotic would in those circumstances also be regarded as constituting an attempt to have possession of the narcotic.

51. If the statute creating the offence is ambiguous or doubtful, that interpretation should be preferred that restricts rather than expands the category of offences, Stephen J agreed. Mason J agreed.
52. Jacobs J went further, noting that the requirement of lack of reasonable excuse made it more difficult to infer that an attempt to possess a prohibited import was made an offence as that lack of reasonable excuse “must exist at the time of having the prohibited imports in possession. If there is no possession, there is strictly no basis upon which the issue of reasonable excuse at the relevant time could be determined.”
53. If a statute unambiguously so provided, it was held, effect could, nevertheless, be given to it but it would be necessary to transpose the requirement that there be no reasonable excuse from the time of possession to another time presumably the time of the attempt to acquire possession. Where the language of the Act is not clear, that transposition could not be justified.
54. Murphy J also agreed, pointing out that an attempt to acquire possession may be intelligible but an attempt to have possession is not.
55. A similar legislative scheme was considered by Mildren J in R v Prior [1992] NTSC 108; (1992) 112 FLR 388. In that case, the accused supplied to another person a substance he believed to be, but which had not been proved to be, heroin. Section 64(a) of the Poisons and Dangerous Drugs Act 1983 (NT) provided for an offence of attempting to possess an illicit drug. Section 64(c) made no similar provision in respect of an attempt to supply such a drug. Mildren J held that it could not be inferred that the general provisions of the Criminal Code (NT) relating to attempts to commit an offence were intended to apply to the offence created by s 64(c).
56. In Gillis v R [1994] SCWACCA, Rowland, Nicholson and Anderson JJ, 12 July 1994, it was accepted, without argument, that, for similar reasons, a charge of aiding and abetting the possession of illicit drugs, contrary to s 233B of the Customs Act, could not be supported by reference to the aiding and abetting provisions of the Criminal Code 1995 (Cth).
57. It is a question of interpretation. In R v Palaga [2001] SASC 174, South Australian legislation was construed by the Court of Criminal Appeal (Doyle CJ, Nyland and Gray JJ) so as not to exclude the attempt provisions of the Criminal Law Consolidation Act 1935 (SA) from applying to Controlled Substances Act 1984 (SA) provisions relating to a charge of attempting to produce cannabis.
58. The Court of Criminal Appeal of Tasmania in Tasmania v Lee [2006] TASSC 92 came to a similar conclusion in respect of the conspiracy provisions of the Criminal Code 1924 (TAS) and the Living Marine Resources Management Act 1995 (TAS) relating to the export of abalone without relevant documentation.
59. It is apparent that an attempt to possess an article the possession of which, if then and there taken, would be unlawful may be made an offence if the legislature chooses to make it so.
60. There are some logical difficulties in adopting that conclusion in a case such as the present. The most obvious is the proximity in time of the intended possession. To vary the facts of this case as an example, if the appellant intended to take possession of the subject pistol several weeks into the future, by then he may well have formed the view, perhaps on advice, that he should first obtain a permit and register the weapon. To then possess the pistol would not be an offence. Further, the substantive offence can only be committed when possession is taken. If the lawful custodian will not permit it, or permit it only in accordance with the F Act is there an attempt? Further, if possession is to be taken in the future, rather than forthwith, will the law be the same? In this case, the law was radically altered on 16 July 2008 with the proclamation of the Firearms Amendment Act 2008 (ACT).
61. I turn to the first question, that is, the intent or not to apply s 44 of the Code to ss 16(1) and 53(1) of the F Act, as it was on 24 March 2008. Section 4CA, as then numbered, provided:

Other legislation applies in relation to offences against this Act.
There then follow two notes, as follows:
Note 1 Criminal Code
The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

• s 16 (Unauthorised possession or use of firearms prohibited)
• s 84A (Unauthorised manufacture of firearms)
• s 98(5) (Sale and purchase of ammunition)

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

62. The status of notes to sections is addressed in the Legislation Act 2001 (ACT) (the Legislation Act) s 127(1):

A footnote, endnote, or other note, in or to an Act or statutory instrument is not part of the Act or instrument.

63. That latter section is declared by the Legislation Act to be a “determinative provision”. That is, it is not intended to be displaced save by “a more deliberate displacement” than “a contrary intention”. Rather, it must be either an “express” or a “manifest contrary intention” (see s 6 Legislation Act).
64. Thus, s 4CA simply warns the reader that other legislation applies to offences against the Act. It does not evidence an intention to apply those provisions if they would not otherwise do so.
65. Clearly, as from 1 January 2003, the Code applies to all offences thereafter created. The offences under ss 16(1) and 53(1) were created prior to 1 January 2003 and remained in the Act as at 24 March 2008 without amendment, though the Notes referred to above were added later. Section 8(1) of the Code provides:

Despite section 7, the provisions of this chapter (other than the applied provisions) do not apply to a pre-2003 offence unless – [not relevant]

66. The “applied provisions” include part 2.4 which in turn includes s 44. It is clear from s 44(10) of the Code that a person cannot “attempt” a conspiracy to aid and abet an offence. Section 44(7) preserves any limitation on criminal liability applicable to an offence. That would apply to an attempt to commit the particular offence in question.
67. It is therefore apparent that the general provisions of the Code relating to criminal responsibility in Ch 2 (ss 6-67 inclusive) have application to the offences created from 1996 under ss 16(1) and 53(1) of the F Act. It is difficult, therefore, to understand how the Note 1 to s 4CA of the F Act can be accurate insofar as it suggests that only offences under s 16, s 84A and s 98(5) of the F Act are affected by the Code.
68. It seems to me that the more accurate statement is that the Code is not intended to give any special or specific application of the provisions of Ch 2 to the offence provisions of the F Act, save to note that the attribution of criminal responsibility will, from commencement of the Code, be dealt with pursuant to Ch 2 rather than the common law if there be a difference.
69. It leaves open the question as to whether the offences under s 16(1) and s 53(1) in particular are offences to which s 44 of the Code has application. Certainly, some offences cannot be the subject of attempt. For example, to fail to produce a licence is an offence that can only be committed, not attempted (see s 104 Firearms Act 1996).
70. However, there seems to me to be no reason why there could not be an attempt to obtain possession of a firearm contrary to either s 16(1) of s 53(1). It is, however, important to find the intent required, that is, to take possession with lack of registration or licence as at the time of intended possession and otherwise than for the purpose of complying with s 93 (taking possession to surrender to a police officer).
71. It was, in my view, open to his Honour to have found the offences of attempt proved. However, the case against the appellant had been of possession. The issue of his specific intent or purpose at the time he requested possession was not examined. Of course, the appellant could, on being acquitted of possession, have sought an adjournment to consider his position including that of giving evidence. It should be noted that s 298 of the Crimes Act did not create an offence of attempting to obtain possession of the firearm in question but did authorise, as I have found, an alternative verdict of attempt if that offence be otherwise available. Section 44 of the Code creates that offence.
72. There was attention focussed on the actus reus of attempt. I am troubled that no attention was given to the mens rea required for the attempts in question. Indeed, his Honour noted that he had no evidence of the appellant’s mental state at the time of his request. However, it is difficult to find error if his Honour was not asked to allow the appellant an adjournment to consider calling evidence on the different issues raised by the attempt charges.
73. There is, however, a more egregious error apparent on the face of the record. His Honour, on finding the offences proved, asked the prosecutor what the penalty was. She replied, “a $5,000 fine and/or a 6 month period of imprisonment”. That was correct for 08/6405. For 08/6408 she added “the maximum penalty is a $20,000 fine and/or imprisonment for two years”. That latter penalty applied to a prohibited firearm or pistol. It was not alleged that this firearm was such a weapon.
74. As at the date of the offences, the applicable penalty for the offence under s 16(1), was 100 penalty units, imprisonment for one year or both.
75. The penalties imposed were, of course, within the maximum in each case but, if the correct maximum had been identified, the penalty actually imposed for 08/6408 might have been less.
76. Accordingly, for that reason also the appeals must be upheld and the convictions and penalties set aside. I will hear the parties as to the further disposition of the matters and any other orders.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 10 August 2009

Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Ken Cush and Associates
Counsel for the Respondent: Ms S Snell
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 30 April 2009
Date of judgment: 10 August 2009